REVIEW OF DETERMINATIONS OF THE BOARD OF FINANCE
AND REVENUE


Rule 1571. Determinations of the Board of Finance and Revenue.

 (a)  General rule.—Review of a determination of the Board of Finance and Revenue shall be governed by this chapter and ancillary provisions of these rules, except as otherwise prescribed by this rule.

 (b)  Time for petitioning for review.—A petition for review of a determination of the Board of Finance and Revenue shall be filed:

   (1)  Within 30 days after entry of an order of the Board which does not expressly state that it is interlocutory in nature.

   (2)  Within 30 days after entry of an order of the Board adopting a determination by the Department of Revenue or other government unit made at the direction of the Board respecting any matter pending before the Board.

   (3)  Where the Board is required by statute to act finally on any matter pending before it within a specified period after the matter is filed with the Board and has not done so, at any time between:

     (i)   the expiration of such specified period; and

     (ii)   30 days after service of actual notice by the Board stating that it has failed to act within such period.

 (c)  Form.—The petition for review shall contain a statement of the basis for the jurisdiction of the court; the name of the party seeking review; a statement that the Board of Finance and Revenue made the determination sought to be reviewed; reference to the order or other determination sought to be reviewed; and a general statement of the objections to the order or other determination. The petition for review need not be verified and shall not contain or have endorsed upon it notice to plead. A petition for review of a taxpayer or similar party shall name the ‘‘Commonwealth of Pennsylvania’’ as respondent and a petition for review filed by the Commonwealth of Pennsylvania shall name all real parties in interest before the Board as respondents.

 (d)  Service.—In the case of a petition for review by a taxpayer or similar party, a copy of the petition shall be served on the Board of Finance and Revenue and on the Attorney General by the petitioner in accordance with Rule 1514(c). All other parties before the Board shall be served as prescribed by Rule 121(b) (service of all papers required).

 (e)  Answer.—An answer may not be filed to a petition for review of a determination of the Board of Finance and Revenue. The Commonwealth may raise any question on review, although no cross petition for review has been filed by it, and may introduce any facts in support of its position if 20 days written notice is given to the petitioner prior to trial of the intention of raising such new questions or presenting new facts.

 (f)  Record.—No record shall be certified to the court by the Board of Finance and Revenue. After the filing of the petition for review, the parties shall take appropriate steps to prepare and file a stipulation of such facts as may be agreed to and to identify the issues of fact, if any, which remain to be tried. See Rule 1542 (evidentiary hearing).

 (g)  Oral argument.—Except as otherwise ordered by the court on its own motion or on application of any party, after the record is closed, the matter may be listed for argument before or submission to the court.

 (h)  Scope of review.—Rule 1551(a) (appellate jurisdiction petitions for review) shall be applicable to review of a determination of the Board of Finance and Revenue except that:

   (1)  A question will be heard and considered by the court if it was raised at any stage of the proceedings below and thereafter preserved.

   (2)  To the extent provided by the applicable law, the questions raised by the petition for review shall be determined on the record made before the court. See Subdivision (f) of this rule.

 (i)  Exceptions.—Any party may file exceptions to an initial determination by the court under this rule within 30 days after the entry of the order to which exception is taken. Such timely exceptions shall have the effect, for the purposes of Rule 1701(b)(3) (authority of lower court or agency after appeal) of an order expressly granting reconsideration of the determination previously entered by the court. Issues not raised on exceptions are waived and cannot be raised on appeal.

   Official Note

   Subdivision (b) represents an exercise of the power conferred by 42 Pa.C.S. §  5105(a) (right to appellate review) to define final orders by general rule. The following statutes expressly require the Board of Finance and Revenue to act within six months in certain cases:

   Section 1103 of The Fiscal Code (72 P. S. §  1103).

   Act of December 5, 1933, (Sp. session 1933-34), (P. L. 38, No. 6), known as the Spirituous and Vinous Liquor Tax Law, §  5 (47 P. S. §  749).

   Act of January 14, 1952 (1951 P. L. 1965, No. 550), known as the Fuel Use Tax Act, §  7 (72 P. S. §  2614.7).

   Sections 234 (sales and use tax), 341 (personal income tax), and 2005 (malt beverage tax), act of March 4, 1971 (P. L. 6, No. 2), known as The Tax Reform Code of 1971 (72 P. S. § §  7234, 7341, 9005). The following statute requires the Board of Finance and Revenue to act within twelve months in certain tax refund matters:

   Section 3003.5 of the Tax Reform Code of 1971, Act of March 4, 1971, P. L. 6, No. 2, 72 P. S. §  10003.5. Section 3003.5 was added by Section 41 of the Act of June 16, 1994, P. L. 279, No. 48.

   The following statutes are covered by Section 1103 of The Fiscal Code (petition to Board of Finance and Revenue for review):

   Sections 809 (various insurance taxes) and 1001 (miscellaneous settlements, e.g., under the act of May 17, 1921 (P. L. 789, No. 285), known as The Insurance Department Act of 1921, §  212 (40 P. S. §  50) (retaliatory insurance taxes)) of The Fiscal Code (72 P. S. § §  809 and 1001).

   Act of June 22, 1931 (P. L. 694, No. 255) §  4 (72 P. S. §  2186) (motor carriers-trackless trolley carriers).

   Act of June 22, 1935 (P. L. 414, No. 182), known as the State Personal Property Tax Act, §  18(b) (72 P. S. §  3250-11a(b)) (corporate loans tax). See Act of April 25, 1929 (P. L. 669, No. 288), §  1.

   Act of May 23, 1945 (P. L. 893, No. 360), known as the Co-operative Agricultural Association Corporate Net Income Tax Act, §  6 (72 P. S. §  3420-26).

   Act of January 24, 1966 (P. L. (1965) 1509, No. 531), §  11 (40 P. S. §  1006.11) (surplus lines tax).

   Sections 407 (corporate net income tax), 603 (capital stock—franchise tax), 702 (bank shares tax), 802 (title insurance and trust companies shares tax), 904 (insurance premiums tax), 1102 (utilities gross receipts tax), 1111-C (realty transfer tax) and 1503 (mutual thrift institutions tax of the Tax Reform Code of 1971 (72 P. S. § §  7407, 7603, 7702, 7802, 7904, 8102, 8111-C and 8503).

   75 Pa.C.S. §  9616(f) (motor carriers road tax).

   The basis of jurisdiction of the court under this rule will ordinarily be 42 Pa.C.S. §  763 (direct appeals from government agencies). Subdivision (c) is not intended to change the practice in connection with the review of orders of the Board of Finance and Revenue insofar as the amount of detail in the pleadings is concerned. What is required is that the petitioner raise every legal issue in the petition for review which the petitioner wishes the court to consider. The legal issues raised need only be specific enough to apprise the respondent of the legal issues being contested (e.g. ‘‘valuation,’’ ‘‘manufacturing,’’ ‘‘sale for resale,’’ etc.). See generally House of Pasta, Inc. v. Commonwealth, 37 Pa. Cmwlth. Ct. 317, 390 A.2d 341 (1978).

   Subdivision (e) is based on Section 1104(e) of The Fiscal Code , which was suspended absolutely by these rules, and subsequently repealed.

   Subdivision (f) is based on 2 Pa.C.S. §  501(b)(1) (scope of subchapter) and 2 Pa.C.S. §  701(b)(1) (scope of subchapter), which exclude tax matters from the on-the-record review requirements of 2 Pa.C.S. §  704 (disposition of appeal).

   Subdivision (h) is based on Section 1104(d) of The Fiscal Code , which was suspended absolutely by these rules and subsequently repealed, and is intended as a continuation of the prior law, except, of course, that the separate specification of objections has been abolished by these rules.

   Subdivision (i) is intended to make clear that the failure to file exceptions will result in waiver by a petitioner of any issues previously presented to the Commonwealth Court.

   See also Rule 1782 (security on review in tax matters).

Source

   The provisions of this Rule 1571 adopted May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended July 7, 1997, effective in 60 days, 27 Pa.B. 3503; amended July 8, 2004, effective 60 days after adoption, 34 Pa.B. 3862. Immediately preceding text appears at serial pages (231661) to (231664).



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